Transparency
in the European Union still problematicJelle
van Buuren 30.04.2003

Transparency has increased in
the European Union, as sofar is it has become somewhat easier
to search for and request specific documents. But the accessibility
of the requested documents has not increased correspondingly.

This conclusion is made by the
International Federation of Journalists, who asked Danish and
Swedish researchers to look into the effects of the new European
rules on openness, which came into force in 2001. In order to
test the usefulness of the new rules, access was requested to
three different kinds of documents in three different policy
areas. Documents indicating the position taken by a Member State
were not released, since it is assumed that this would make decision-making
in the Council more difficult. Also no part of any document on
anti-terrorism measures was released, as this would jeopardise
public safety. According to the study, 'concern for the prejudicial
effects of releasing a document seems to weight as heavily as
or more heavily than the specific content of the document.'

A stunning example of how openness
on all documents relating to anti-terrorism measures is being
denied can be found in a recent request I made to get the evaluation
of national anti-terrorism measures. In September 2002 the Council
send a 'questionnaire on peer assessment of national terrorist
arrangements' to the Member States of the Union. The questionnaire
mainly focused on all sorts of legal questions, like: what is
the current legal basis for anti-terrorist action in your country
and how are terrorism/terrorist acts defined; does your legislation
include specific provisions ("universal jurisdiction")
to prosecute terrorist acts committed abroad by nationals and/or
by foreigners against national interests; has your country assessed
new legal provisions in order to improve the fight against terrorism
both at national and international levels, especially in the
following fields: interception of communications, cybercrime,
legal obligations for internet providers/telecom operators, list
of terrorist organisations, fight against the financing of terrorism,
CBRN terrorism, information and data exchanges within the EU
MS and with Third countries?

Other questions focussed mainly on organisational matters, like:
which ministries are involved in the fight against terrorism
and which one has the lead; what are their respective competences;
how has a co-ordination body been set up at inter-ministerial
level; if so, what is its remit and membership, and has it a
permanent character; how are suspected terrorists prosecuted?
in comparison with criminal offenders, are there special criminal
procedures or substantive provisions e.g. in the field of pre-trial/custody,
penalties, and liability of legal persons; do you have specialised
prosecution units/magistrates and what are their competences?

I asked for the release of two
documents, which summarised the outcomes of this evaluation.
But access was fully denied on the grounds of article 4(1) of
the regulation on public access: protection of public interest
as regards public security:

"If sensitive information
of this kind were to be disclosed, the relevant authorities might
regard this as a breach of their trust and in the future be less
inclined to provide such information, which in turn would be
contrary to the public interest of combating terrorism effectively", the General Secretariat of the Council
of the European Union argued.

I appealed to this decision, because almost all of the questions
in the questionnaire related to legal provisions, and the legal
competence and powers of bodies involved in the field of anti-terrorism.
In short, these are by their very nature public matters and should
be available in any democratic society.

As a result, I got partially
access to one of the documents. But most of the document is still
kept secret. For instance, the whole part of the questionnaire
on the interception of telecommunications and Internet is kept
secret. 'These parts of the document consist of a description
of provisions under preparation relating to these sensitive issues
or the absence thereof. The Council considers that "the
provision of detailed information on the legal framework for
specific methods of the fight against terrorism and its loopholes
could be used by terrorist organisations to steer their operations
from Member States in which those methods are least developed,"
the letter argues.

With the same argumentation access is denied to the answers on
the internal organisation of the anti-terrorism bodies: "This
chapter reveal details, which by comparison also reveals the
efficiency of those services. Again this information could be
used by terrorist organisations to steer their operations from
Member States in which they face the least risk of persecution."
For the same reasons, access is denied on information on additional
funding and measures of internal organisation, and negotiations
to enhance international cooperation.

The other document is kept entirely secret. 'In this document
the Presidency makes a preliminary assessment of the areas of
major concern in the light of the analysis provided by Member
States. Disclosure of this note could seriously hamper and prejudice
from the beginning all efforts being made for a co-ordinated
plan at European level to combat terrorism,' the letter states.

It is interesting to see that
the partial disclosure of one of the requested documents was
supported by a narrow majority of nine of the fifteen Member
States. Six states were against the partial disclosure: Belgium,
Greece, Portugal, Sweden, Finland and Denmark. It is remarkably
that the Scandinavian countries, which are known as supporters
of more openness in the Union, voted against the disclosure.
Maybe there is some information in the document that these governments
find embarrassing to reveal? Belgium seems to be the hardliner
in this case. The Belgian delegation asked to publish a declaration:

'The Belgian delegation is in favour of total refusal of the
documents. Belgium considers that all documents made in the framework
of the evaluation exercise of national anti-terrorist arrangements
cannot be accessible to the public.'

The parts of the document that
are being disclosed are not very sensitive stuff. For instance,
the document states that the United Kingdom, France, Spain and
Italy have developed a specific and comprehensive anti-terrorist
legal base to prevent and prosecute terrorist acts, while the
other Member States criminalize the participation in terrorist
groups and prosecute terrorist groups as criminal organisations.
It also become clear that most of the Member States do not have
a clear definition of 'terrorism' in their legislation. Further,
all Member States finds international treaties on terrorism very
important and are preparing new legislation in accordance with
the European Framework Decision on Terrorism of 13 June 2002.
All Member States have existing appropriate legal provisions
against the financing of terrorism. Also most Member States,
with the exception of Belgium, Luxembourg and Ireland, have legislation
against CBRN terrorism.

The study further 'reveals' that even the Member States, which
have national anti-terrorist legal frameworks usually, do not
apply or do not use exceptional arrangements in respect of alleged
terrorists. They are prosecuted under 'normal' criminal legislation,
except in France, which has adopted and applied 'exceptional
arrangements' to presumed terrorists. Also Germany and Italy
have to 'a certain extent specific substantive provisions governing
the investigation and prosecution of terrorist offences.'

The evaluation concludes that the transposition into national
laws of the adopted European Framework decisions on Terrorism
and the European Arrest Warrant 'will approximate the prevention
and prosecution of terrorism and will prevent the use of legal
gaps by terrorists. The implementation at national level is a
crucial element for combating terrorism in particular in Member
States which prosecute terrorist-related offences under general
criminal law without specific reference to the intention of terrorists
to disrupt society, in accordance with the definition adopted
by the Council.'

So this is the kind of information
that some European Member States don't want to be released to
the public. So far for openness in the European Union, one may
conclude. The problem is that more and more European documents
are kept secret with the same arguments: any comparison of legislative,
organisational or operational arrangements in the field of law
enforcement are seen as a potential threat to the public order,
as criminals or terrorists could use the 'loopholes'. What should
the European Union think of all those academic institutes that
publish comparative European studies? Or national institutes
that study the operations of law enforcement? In the eyes of
the European Union, this must be a threat to public safety.

It seems the International Federation of Journalists, which looked
into the effects of the new European rules on openness, came
to the right conclusion: 'The new regulation operates to the
full satisfaction of those who still do not wish to place sensitive
documents in the public domain and who still do not wish to explain
the positions of the Member States before decisions are taken.'
This article was written for: Telepolis